Johnson and Johnson Limited Vs. Commissioner of C. Ex.

1. the application is for waiver of pre-deposit of rs. 4,19,032/- confirmed as duty on magnical tablets manufactured by the applicant herein as a result of classifying the product under sub-heading 2108.99 as "other miscellaneous edible food preparations", rejecting the applicant's claim for classification as p&p medicines under sub-heading 3003.10, and imposing penalty of rs. 1 lakh.3. the contention of the applicant that the item in question is used to prevent pre-eclampsia which leads to hypertension and swelling of feet in pregnant and lactating women and that the tablets are also used for prevention of vitamin-d deficiency and prevents premature labour, that it is sold under prescription and that it is not commonly available but available only in chemist's shop, etc. has not been rebutted by the revenue. the revenue rests its case upon the fact that the composition of the item namely, zinc, calcium and magnesium are not such as to make the item a p&p medicine but only a sort of food supplement. having regard to the language of the rival heading and the fact that the item is only sold under prescription, prima facie, it is a prophylactic and therefore heading 30.03, prima facie, appears more appropriate and therefore we waive deposit of the duty and penalty, and stay recovery thereof pending the appeal.